United States District Court, E.D. Tennessee, Greeneville
JOEL D. CORMIER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RONNIE GREER UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's Supplemental
Motion to Vacate, Set Aside or Correct Her Sentence [Doc. 9],
the United States' Response to Petitioner's
Supplemental Motion to Vacate, Set Aside or Correct Her
Sentence [Doc. 12], and Petitioner's Reply [Doc. 14]. For
the reasons herein, the Court will deny Petitioner's
federal inmate, petitioner Joel D. Cormier pleaded guilty to
attempting to persuade a minor to engage in sexual activity,
in violation of 18 U.S.C. § 2422(b). [Plea Agreement,
Doc. 22, at 1, 2:15-CR-00003]. On October 19, 2015, the Court
sentenced her to 216 months' imprisonment and a lifetime
term of supervised release, and it entered judgment against
her on October 22, 2015. [J., Doc. 45, at 1-3,
2:15-CR-00003]. About eleven months later, she filed a motion
to vacate, set aside, or correct her sentence under 28 U.S.C.
§ 2255, and roughly four months after filing this
motion, she moved for leave to file a “supplemental
motion.” [Pet'r's Suppl. Mot. at 1]. In her own
terms, she described her supplemental motion as
“superceding” her “original § 2255
motion, ” [id. at 7], and the Court, after
granting her leave to file it, ordered the United States to
file a responsive pleading, [Order, Doc. 10, at 2].
supplemental motion, she alleges ineffective assistance of
counsel, claiming that her attorney, Ms. Rosana Brown, was
ineffective-in violation of her constitutional rights under
the Sixth Amendment of the United States Constitution-because
she did not file an appeal of her sentence. [Pet'r's
Suppl. Mot. at 3-9]. She alleges that she
“specifically” told Ms. Brown to “file
notice of appeal immediately following [her] sentencing on
October 19, 2015, ” and that in response, Ms. Brown
informed her that an appeal would be futile. [Id. at
3-4]. Ms. Cormier pleads that she then instructed Ms. Brown
to appeal her sentence “regardless of the chances of
its success or failure, ” but Ms. Brown did not do so.
[Id. at 5].
reviewing Ms. Cormier's supplemental allegations, the
Court determined that she had pleaded sufficient facts to
warrant an evidentiary hearing,  and it therefore ordered the
parties to appear for an evidentiary hearing on March 21,
2019. [Order, Doc. 16, at 1-2]. Under the Criminal Justice
Act, 18 U.S.C. § 3006A et seq., the Court
appointed counsel to represent Ms. Cormier, who was present
in person at the hearing, as was Ms. Brown. [Id.].
Ms. Cormier was the first witness to testify, while Ms.
Brown, who was under the rule of sequestration, remained
outside the courtroom. [Hr'g Tr. at 4:18-25; 5:1-2 (on
file with the Court)].
outset, Ms. Cormier's testimony was largely a reiteration
of her allegations. She testified that she had asked Ms.
Brown to appeal her sentence immediately after her sentencing
hearing, but Ms. Brown responded by telling her that
“an appeal wasn't practicable.” [Id.
at 6:22-25; 7:1-7]. According to Ms. Cormier, she instructed
her to file an appeal anyway, and as the United States
Marshals escorted Ms. Cormier from the courtroom, Ms. Brown
assured her that they would talk again soon. [Id. at
7:5-7]. Ms. Cormier testified that the day after her hearing
she had spoken to Ms. Brown by telephone and again directed
her to file an appeal of her sentence, but once more, Ms.
Brown told her that an appeal would be of no avail.
[Id. at 7:18-25; 8:1-19].
Cormier then went on to testify that due to extenuating
circumstances-including her intermittent transfer to and from
various prisons, her need to remain segregated from other
inmates, and her time spent convalescing in a hospital after
suffering an attack from another inmate-she did not prepare
her § 2255 motion until about a month before §
2255's statute of limitations was set to
expire. [Id. at 9:23-25; 10:1; 11:1-13;
12:19-22; 13:3-16; 13:20-25; 14:1-6; 14:12-25; 15:1-4;
16:1-25; 17:1-21; 19:2-11]. With an understanding that
“it was imperative to file” a timely § 2255
motion-that is, before the one-year statutory deadline
reached its end-Ms. Cormier hurried to procure a standardized
“2255 form, ” “completed it to the best of
[her] ability, ” and filed it with the Court on
September 15, 2016. [Id. at 18:5; 18:18-19; 19:5-8;
19:21-23]. “The ins and outs, the intrinsic details,
were as of that point completely lost to me. I just knew I
had to get it filed, ” Ms. Cormier testified.
[Id. at 18:24-25; 19:1].
filing her motion, she devoted herself to “practically
living in the law library” and performed
“exhaustive research” into the particulars of her
case. [Id. at 20:12; 21:5]. From her research, she
“discovered . . . certain details about [her] case
which required further expounding upon, hence the supplement
to the 2255, ” in which, for the first time, she raised
her claim of ineffective assistance of counsel based on Ms.
Brown's alleged failure to appeal her sentence.
[Id. at 20:18-21]. She did not file this
supplemental motion, however, until January 26, 2017.
According to Ms. Cormier, before filing this motion, she had
been unaware that a claim of ineffective assistance of
counsel could arise from an attorney's non-observance of
a client's request to appeal a sentence. [Id. at
20:22-25; 21:1-5; 29:11-14].
Ms. Cormier was unfamiliar with the legal contours that
comprise a claim of ineffective assistance of counsel until
she conducted her research, she acknowledged that she became
aware of the facts underlying her claim on the day
after her sentencing, when she spoke to Ms. Brown by phone:
Q: You were fully aware on October 20, 2015, that Ms. Brown
did not intend to file a notice of appeal, correct?
A: That's correct.
Q: Whether you knew the significance of that or not, you knew
those facts, didn't you?
A: Yes, sir.
. . . .
Q: Is it fair to say then that the reason you did not include
the claim of failure to file the notice of appeal in your
September 15, 2016 filing is not because you didn't know
any of the facts, but because you didn't know the legal
significance of those facts?
A: That is correct.
[Id. at 42:3-9; 45:1-6; see Id. at 8:2-19].
Ms. Cormier's testimony, Ms. Brown returned to the
courtroom and offered her testimony, which was consistent
with Ms. Cormier's on some fronts. Ms. Brown confirmed
that she and Ms. Cormier did broach the topic of an appeal
immediately after her sentencing hearing, with each of them
agreeing to speak further about it by phone once Ms. Cormier
returned to prison. [Id. at 52:14-22]. Ms. Brown
testified that, within a day or two, they spoke by phone and
Ms. Cormier inquired about the prospect of an appeal.
[Id. at 53:1-8]. According to Ms. Brown, she stated
her opinion that the case, as it related to Ms. Cormier's
sentence, lacked appealable issues. [Id. at 53:8].
Brown refuted the idea that Ms. Cormier asked her to appeal
her sentence and that she refused to do so. Ms. Brown
testified that while she did share with Ms. Cormier her
professional opinion that Ms. Cormier's sentence lacked
appealable issues, she also explained to Ms. Cormier that she
was nevertheless “absolutely obligated” to appeal
that sentence if instructed to do so. [Id. at
53:12-17]. According to Ms. Brown, however, Ms. Cormier
ultimately “agreed in [her] assessment of the case,
” “decided not to” pursue an appeal, and
did not request an appeal at any point afterwards.
[Id. at 53:18-25; 54:1; 55:11-13; 57:1-14; 63:14-
Brown then testified that she wrote and mailed a letter to
Ms. Cormier, with the intention of confirming their
conversation. [Id. at 54:1-2]. She produced a copy
of this ...